Tennessee Coalition for Open Government released a new white paper today analyzing how production fees were incorporated into the Tennessee Public Records Act.
The new white paper examines opinions by the Attorney General and the Office of Open Records Counsel, dating back to 1980, as well as a 1998 Tennessee Supreme Court opinion. The paper also examines the legislative history of changes to the Tennessee Public Records Act in 2008 that resulted in the Schedule of Reasonable Charges maintained by the Office of Open Records Counsel.
Finally, the paper includes a history of the effort in 2015 to change the law to remove “free inspection” of public records, a statewide study and hearings on the issue and the eventual withdrawal of the legislative proposal.
In 2010, the Office of Open Records Counsel addressed the question of whether labor fees can be charged if a requestor only wants to view public records — not get copies.
The short answer from the Open Records Counsel was no — a custodian cannot charge labor fees associated with producing records in response to a citizen’s request to view public records.
The question arose because of a provision added to the law in 2008 that stated:
“A records custodian may require a requestor to pay the custodian’s reasonable costs incurred in producing the requested material and to assess the reasonable costs in the manner established by the office of open records counsel pursuant to § 8-4-604 (Tenn. Cod Ann. Section 10-7-503 (a)(7)(C)(1).”
The Office of Open Records Counsel examined the public chapter creating this new provision, Public Chapter 1179, Acts of 2008, and pointed out that the chapter also established a new provision that specifically prohibited charges for viewing a public record and a provision that specified that the “reasonable charges” established by the office were only to be applied when a person requested copies of public records.
Charging citizens fees for public records is a contentious issue, not just in Tennessee but across the country. Some states mandate that the government will provide public records for free, or at only the cost of paper and ink to make the copies. Others allow hourly labor fees to produce records, with maximum rates and prohibitions for charging for some types of labor, such as attorney review.
There is no one way that fees are handled by all states and the federal government. But the basic tension is the same: Some in government argue that citizens should pay for the time it takes their employees to provide access to public records, while others argue that making public records accessible to its citizens is already an important part of the job of government employees, and fees effectively block access to government documents by making them too expensive to get.
State laws usually reflect some compromise, and Tennessee is no different.
This analysis attempts to show how Tennessee incorporated production fees into the law for copies of public records, and the limits placed around such fees.